United States v. Bernacet

12-2584-cr
United States v. Bernacet
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2012 5
6
(Argued: May 1, 2013 Decided: August 1, 2013) 7
8
Docket No. 12-2584-cr 9
10
11
UNITED STATES OF AMERICA, 12
13
Appellee, 14
15
-v.- 16
17
RONNIE BERNACET, 18
19
Defendant-Appellant. 20
21
22
23
Before: 24
S ACK , W ESLEY , AND C ARNEY , Circuit Judges. 25
26
27
28
29
30
Appellant Ronnie Bernacet appeals from a judgment of 31
conviction, entered by the United States District Court for 32
the Southern District of New York (Laura Taylor Swain, 33
Judge), of possessing a handgun after a felony conviction in 34
violation of 18 U.S.C. § 922(g)(1). Bernacet asserts that 35
(1) the search of law enforcement databases at a traffic 36
checkpoint rendered that stop an unreasonable seizure of his 37
person in violation of the Fourth Amendment; (2) officers 38
lacked probable cause to believe that he was violating his 39
parole; and (3) because a parole violation does not provide 40
a lawful basis for a warrantless arrest in New York, his 41
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arrest for a parole violation was unconstitutional. We hold 1
that (1) the de minimis additional time taken to search a 2
database did not render the traffic checkpoint an 3
unreasonable seizure; (2) officers had sufficient probable 4
cause to believe that Bernacet was violating his curfew; and 5
(3) the New York law prohibiting warrantless arrests for 6
parole violations that are not themselves crimes or offenses 7
is a state “arrest rule” subject to Virginia v. Moore, 553 8
U.S. 164 (2008), and Bernacet’s arrest was not 9
unconstitutional. We therefore AFFIRM the district court’s 10
judgment. 11
12
AFFIRMED. 13
14
15
16
17
DARRELL B. FIELDS, Appeals Bureau, Federal 18
Defenders of New York, Inc., New York, NY, for 19
Appellant Ronnie Bernacet. 20
21
MATTHEW L. SCHWARTZ, Assistant United States 22
Attorney (Iris Lan, Assistant United States 23
Attorney, on the brief), for Preet Bharara, 24
United States Attorney for the Southern 25
District of New York, New York, NY, for 26
Appellee United States of America. 27
28
29
30
W ESLEY , Circuit Judge: 31
32
Ronnie Bernacet appeals from a judgment of conviction 33
entered against him in the United States District Court for 34
the Southern District of New York (Laura Taylor Swain, 35
Judge) following a one-day bench trial on October 25, 2011. 36
Bernacet was convicted of one count of possessing a firearm 37
following a conviction for a felony, in violation of 18 38
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U.S.C. § 922(g)(1). The district court sentenced Bernacet 1
to 57 months’ imprisonment and three years’ supervised 2
release. 3
Bernacet asserts that (1) the use of a criminal history 4
database search at a routine traffic checkpoint rendered the 5
stop an unconstitutional seizure of his person; (2) the 6
police lacked probable cause to believe that he was 7
violating his parole; and (3) warrantless arrests for parole 8
violations are unconstitutional in New York. We disagree 9
and find that: (1) the criminal history database search was 10
a de minimis extension of the constitutional traffic 11
checkpoint; (2) the police had probable cause to believe 12
that Bernacet was violating his parole; and (3) Bernacet’s 13
arrest was constitutional, notwithstanding state laws 14
prohibiting officers from arresting parole violators without 15
a warrant in the absence of a crime or offense. We 16
therefore affirm the judgment of the district court. 17
18
Background 19
On October 5, 2010, New York Police Department (“NYPD”) 20
officers conducting a two-hour scheduled traffic-safety 21
vehicle checkpoint in the Bronx stopped motorists to check 22
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their driver’s licenses and vehicle registrations. They 1
collected licenses from only the drivers and ran each 2
driver’s license through NYPD’s “FINEST” system using a 3
mobile device terminal (“MDT”) in the squad car. This 4
“generate[d] a report from the New York Statewide Police 5
Information Network (‘NYSPIN’), which includes data from 6
multiple sources, including” Federal Bureau of Investigation 7
(“FBI”) databases, New York State law enforcement records, 8
and New York Department of Motor Vehicle (“DMV”) records. 9
Callahan Dec. “An officer cannot . . . elect to run a 10
FINEST search from an MDT through some but not all of these 11
databases.” Id. It typically took less than one minute to 12
run each of the license checks conducted at the stop. Id. 13
Officer Patrick Callahan, who had conducted “approximately 14
100 vehicle safety checkpoints at that location” during his 15
22 years with the NYPD, ran licenses through the FINEST 16
system. Id. The checkpoint resulted in two felony arrests, 17
including Bernacet’s. 18
Bernacet pulled up to the checkpoint at approximately 19
11:45 p.m. He gave his driver’s license to Officer Ramon 20
Garcia, who passed it to Callahan. When he ran Bernacet’s 21
license, Callahan noticed that Bernacet was on parole. 22
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Knowing that parolees in New York customarily have 9:00 p.m. 1
curfews, he instructed Garcia to “check it out.” Id. 2
Garcia confronted Bernacet about his suspected parole 3
violation. Garcia contends that Bernacet replied that “he 4
forgot and was sorry.” Garcia Dec. Bernacet “has claimed 5
variously that he replied, ‘What, I’m on violation of 6
parole?’ and ‘I don’t have a curfew my parole officer know I 7
am here [sic].’” United States v. Bernacet, No. 11-cr- 8
00107-LTS, 2011 U.S. Dist. LEXIS 101258, at *3 (S.D.N.Y. 9
Sept. 7, 2011) (citations omitted). 10
Garcia asked Bernacet to step out of the car. Garcia 11
maintains that he then saw a handgun protruding from 12
Bernacet’s pocket; Bernacet alleges that the firearm was not 13
discovered until Garcia frisked him. Id. Garcia then 14
arrested Bernacet. A frisk incident to the arrest revealed 15
a gravity knife in addition to the loaded, .25-caliber Armi- 16
Galesi-Bresci semi-automatic pistol. After receiving his 17
Miranda warnings, Bernacet made several incriminating 18
statements. Id. 19
20
Discussion 21
Bernacet contends that the officers (1) should not have 22
searched law enforcement databases at a traffic safety 23
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checkpoint, (2) did not have probable cause to believe that 1
he was violating his parole, and (3) were not authorized 2
under state law to arrest him for a parole violation, and 3
that therefore his arrest was unconstitutional. Success on 4
any of these claims would require suppression of the handgun 5
and incriminating statements Bernacet made pursuant to his 6
arrest. We hold that the NYSPIN search was reasonable; the 7
officers had probable cause to believe that Bernacet was 8
violating his parole; and his warrantless arrest was not 9
unconstitutional. The district court’s decision to admit 10
the handgun and Bernacet’s incriminating statements was 11
therefore proper. Accordingly, we affirm Bernacet’s 12
conviction. 13
I. Use of Drivers’ Licenses to Search Law Enforcement 14
Databases at the Traffic Stop Was Reasonable 15
16
Bernacet does not challenge the legality of the traffic 17
stop itself, and he does not argue that the search of law 18
enforcement databases unconstitutionally infringed his 19
privacy interests. 1 Rather, he contends that the NYPD’s 20
1 We construe Bernacet’s challenge as related to the
constitutionality of the law enforcement database search during
an otherwise constitutional traffic stop, which “effectuate[d] a
seizure within the meaning of the Fourth Amendment.” City of
Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Insofar as he
intends to challenge the use of the NYSPIN database as a search,
and not because it prolonged the seizure, this claim is devoid of
merit. “[T]he government’s matching of a lawfully obtained
identification record against other records in its lawful
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search of law enforcement databases at a traffic stop was 1
constitutionally unreasonable because it was not closely 2
related to the purpose of the checkpoint. In light of the 3
de minimis intrusion on motorists that was imposed by the 4
law enforcement database search, the traffic stop as 5
conducted was constitutional. 6
A. The Government’s Interests Outweighed the Drivers’ 7
Interests in This Fixed, Traffic-Safety Checkpoint 8
The Supreme Court has endorsed the government’s 9
interest in conducting a fixed checkpoint to monitor traffic 10
safety as a benefit that outweighs drivers’ privacy 11
interests. In Delaware v. Prouse, 440 U.S. 648, 663 (1979), 12
the Court struck down roving stops of automobiles without 13
any particularized suspicion. However, the Court suggested 14
that “[q]uestioning of all oncoming traffic at roadblock- 15
type stops” was a lawful alternative method to provide for 16
traffic safety. Id. In City of Indianapolis v. Edmond, 531 17
U.S. 32, 47 (2000), the Court struck down drug interdiction 18
checkpoints while noting that its holding “d[id] nothing to 19
alter the constitutional status of . . . the type of traffic 20
possession does not infringe on an individual’s legitimate
expectation of privacy.” Boroian v. Mueller, 616 F.3d 60, 67
(1st Cir. 2010) (collecting cases). Police officers are
permitted to look up anyone’s parole status at any time; the only
intrusion into privacy interests here was the requirement that
motorists wait while the police did so.
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[safety] checkpoint that we suggested would be lawful in 1
Prouse.” 2
In this case, the traffic safety checkpoint was 3
conducted at an “accident prone location in the impact 4
zone,” and officers processed 49 cars in two hours. Vehicle 5
Checkpoint Form. 2 The waiting times that each car 6
experienced are fairly characterized as “brief” and “no more 7
onerous than [delays] that typically accompany normal 8
traffic congestion.” Illinois v. Lidster, 540 U.S. 419, 426 9
(2004); see also Mich. Dep’t of State Police v. Sitz, 496 10
U.S. 444, 452 (1990)(stating that the “‘objective’ 11
intrusion” on motorists subjected to checkpoint stops is 12
“measured by the duration of the seizure and the intensity 13
of the investigation”). This traffic safety checkpoint was 14
thus lawful, and is not on its own challenged by Bernacet. 15
B. Gathering Additional Information Did Not Make the 16
Stop Unconstitutional 17
18
Bernacet argues, however, that the addition of law 19
enforcement database searches renders unconstitutional the 20
otherwise lawful traffic checkpoint. The search of the 21
2 We note that the record on appeal seems to indicate that
65 NYSPIN checks took place (from 10:22 p.m. to 11:59 p.m.), 49
vehicles were pulled over, and no passengers’ records were
searched.
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NYSPIN databases took approximately one minute per motorist; 1
of that one minute, some portion was consumed by the search 2
of DMV records. 3 Dist. Ct. Doc. 20-4. The fact that 3
“ordinary criminal wrongdoing,” Edmond, 531 U.S. at 38, was 4
uncovered in the course of an otherwise lawful checkpoint 5
designed for a permissible purpose does not invalidate the 6
checkpoint or the arrest. Lidster, 540 U.S. at 423. The 7
police encountered information suggesting that a parole 8
violation was ongoing; the Fourth Amendment did not require 9
them to ignore this information merely because the officers’ 10
primary focus was on traffic safety. “The law does not 11
require the police to ignore evidence of other crimes in 12
conducting legitimate roadblocks.” United States v. Lopez, 13
777 F.2d 543, 547 (10th Cir. 1985); see also United States 14
v. Morales, 788 F.2d 883, 886 (2d Cir. 1986). 15
The duration of the stop was not significantly 16
increased by the fact that the MDTs search multiple 17
databases, including law enforcement databases. Although 18
our decision in United States v. Harrison, 606 F.3d 42 (2d 19
Cir. 2010), related to traffic stops instead of checkpoints, 20
3 Although it is difficult to discern the duration of each
search, the record reflects, for example, that from 11:23 p.m. to
11:29 p.m. Callahan ran eleven separate license checks through
the MDT. Dist. Ct. Doc. 20-4.
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it applies with equal force in this context, where the 1
initial stop is not challenged. In Harrison, we wrote that 2
“an officer’s inquiries into matters unrelated to the 3
justification for the traffic stop . . . do not convert the 4
encounter into something other than a lawful seizure, so 5
long as those inquiries do not measurably extend the 6
duration of the stop.” Id. at 45 (internal quotation marks 7
and alteration omitted); see also Lidster, 540 U.S. at 427- 8
28. 9
Finally, we note that Bernacet does not argue that the 10
checkpoint was illegal in itself or that the stated purpose 11
of protecting traffic safety in an accident prone location 12
was pretextual. He argues, instead, that it was improper 13
for the police, at a lawfully conducted traffic safety 14
checkpoint, to search for parole status in addition to DMV 15
records. If he were able to establish that the checkpoint 16
was actually conducted for basic crime control purposes and 17
not for vehicle safety reasons, then we would likely find 18
the checkpoint unconstitutional. Edmond, 531 U.S. at 41. 19
II. Officers Had Probable Cause to Believe that 20
Bernacet Was Violating His Parole 21
22
Bernacet contends that the officers lacked probable 23
cause to believe that he was violating his parole because 24
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they had no evidence that he had a curfew as a condition of 1
his parole. Bernacet points out that, although he did have 2
a 9:00 p.m. curfew, curfews are not a mandatory condition of 3
parole in New York State. N.Y. State Parole Handbook 2010 4
at 21-22. He avers that it was unreasonable for the police 5
to assume that he had a 9:00 curfew as a condition of his 6
parole. We disagree. 7
Callahan had probable cause if “the facts and 8
circumstances within [his] knowledge and of which he had 9
reasonably trustworthy information were sufficient to 10
warrant a prudent man in believing that” Bernacet was 11
committing a parole violation. 4 Amore v. Novarro, 624 F.3d 12
522, 536 (2d Cir. 2010) (alterations omitted) (quoting Beck 13
4 Insofar as Callahan had probable cause, it transferred to
Garcia when Callahan told him that Bernacet was violating his
curfew. We do not rely on Bernacet’s response when Garcia
confronted him regarding his parole violation, though it may have
contributed to Garcia’s probable cause calculation. Garcia
reported that Bernacet apologized for the violation; Bernacet has
provided different and inconsistent versions of his reply.
United States v. Bernacet, No. 11-cr-107-LTS, 2011 U.S. Dist.
LEXIS 101258, at *3 (S.D.N.Y. Sept. 7, 2011). We are puzzled as
to why the district court declined to make a factual finding as
to Bernacet’s response. Id. at *2-3.
Similarly, the district court declined to credit either
Garcia’s “claims that a gun was visibly protruding from
[Bernacet’s] back pocket” or Bernacet’s assertion “that his back
pockets were deep enough that the gun was not visible” until he
was frisked. Id. at *3. We assume for purposes of this appeal
that Garcia could not rely on the visibility of the handgun to
establish probable cause.
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v. Ohio, 379 U.S. 89, 91 (1964)). The district court 1
appears to have based its holding on the facts that Callahan 2
“knew that [Bernacet] was on parole. He knew that parolees 3
are customarily subject to 9:00 p.m. curfew as a condition 4
of their parole. He also knew that, when [Bernacet] was 5
stopped at the checkpoint, the time was approximately 11:30 6
p.m.” Bernacet, 2011 U.S. Dist. LEXIS 101258, at *7. 7
Bernacet argues that there was no probable cause 8
because (1) curfew is not a mandatory condition of parole 9
and (2) the NYSPIN search result screenshot submitted to the 10
court did not contain information related to the terms of 11
Bernacet’s parole. Otherwise, Bernacet “has not challenged 12
the reasonableness of Officer Callahan’s belief, established 13
over the course of 20 [sic] years of experience, that a 9:00 14
p.m. curfew is customarily imposed on parolees.” Id. 15
Although he had the opportunity, Bernacet declined to cross- 16
examine Callahan about his affidavit. Callahan’s affidavit 17
is the only evidence on the record regarding the likelihood 18
that a New York parolee had a 9:00 p.m. curfew. 19
We read Callahan’s affidavit to suggest that a high 20
percentage of New York parolees have 9:00 p.m. curfews. No 21
evidence adduced at the suppression hearing suggests 22
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otherwise. Callahan’s 22-year NYPD experience that “New 1
York parolees customarily have a curfew [of] 9:00 p.m.,” 2
Callahan Dec., which Bernacet declined to challenge given 3
the opportunity, constitutes “reasonably trustworthy 4
information . . . sufficient to warrant a prudent man in 5
believing” that such a curfew existed in this case. Amore, 6
624 F.3d at 536. The report from the NYSPIN database firmly 7
established Bernacet’s parole status and his presence on the 8
road shortly before midnight established that he was 9
breaking a 9:00 p.m. curfew if he had one. Taken together, 10
this evidence was sufficient to provide Callahan with 11
probable cause to believe that Bernacet was violating his 12
parole. 13
III. Illegal Warrantless Arrests for Parole Violations 14
Are not Unconstitutional Seizures 15
16
Bernacet contends that the fruits of a search incident 17
to a warrantless arrest for a parole violation are 18
inadmissible because New York has forbidden warrantless 19
arrests for parole violations that are not independently 20
crimes or offenses. We agree that Bernacet’s arrest was 21
illegal under New York law but conclude that it was 22
constitutionally permissible. The exclusionary rule 23
therefore does not apply. 24
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A. New York Law Prohibited Bernacet’s Warrantless 1
Arrest for Violating His Curfew 2
3
The district court determined that Bernacet’s arrest 4
was permissible under New York law. Bernacet, citing People 5
v. Bratton, 8 N.Y.3d 637 (2007), contends that the district 6
court erred. We agree that Bratton extends to arrests by 7
police officers and that Bernacet’s arrest was therefore 8
unlawful under New York law. 9
In Bratton, the New York Court of Appeals held that 10
warrantless arrests by parole officers for parole violations 11
committed in their presence violate New York law if the 12
parole violation does not otherwise constitute a crime or 13
offense. Id. at 641. Bratton, an Ithaca-based parolee, 14
refused to permit two parole officers to enter his apartment 15
to obtain a sample for a urinalysis test. Id. at 639. 16
Bratton attempted to leave; the parole officers arrested 17
him. Id. at 639-40. Relying heavily on the legislative 18
history of the New York statutes permitting parole officers 19
to make arrests, the Court of Appeals held that there was “a 20
considered legislative choice” constricting the warrantless 21
arrest authority of parole officers in New York. Id. at 22
640-643. The Court of Appeals held that refusal of 23
urinalysis was “not an offense within the meaning of section 24
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10.00(1) of the [N.Y.] Penal Law . . . that would 1
independently justify a peace officer in making a 2
warrantless arrest if committed in his presence.” Id. at 3
643. Bratton’s custody was therefore unlawful and his 4
charge of resisting arrest was dismissed. Id. at 641. 5
Seeking to distinguish Bratton, the district court 6
relied on its view that the statute authorizing parole 7
officers to make warrantless arrests differs from that 8
authorizing police officers to make warrantless arrests. 9
Bernacet, 2011 U.S. Dist. LEXIS 101258, at *9. However, 10
“[t]he rules governing the manner in which a peace officer 11
may make an arrest, pursuant to section 140.25, are the same 12
as those governing arrests by police officers, as prescribed 13
in section[s] 140.15 [and 140.10].” CPL N.Y. 140.27(1). 14
The statutes conferring warrantless arrest authority on 15
parole and police officers are identically worded: 5 a police 16
officer or a parole officer “may arrest a person for [a]ny 17
offense when he has [probable] cause to believe that such 18
person has committed such offense in his presence.” CPL 19
N.Y. 140.25(1)(a), 140.10(1)(a). 20
5 The only textual difference between the statutes is that
CPL N.Y. 140.10(1)(a) permits a police officer to make an arrest
when “he or she” has probable cause.
15

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The authority to make a warrantless arrest for parole 1
and police officers alike relies on New York’s definition of 2
an “offense.” See Bratton, 8 N.Y.3d at 643 (reading 3
“offense” in CPL N.Y. 140.25(1)(a) to refer to N.Y. Penal L. 4
§ 10.00(1)). The Bratton Court held that the only parole 5
violations that are “offenses” for the purpose of this 6
statute are those that “would independently justify” a 7
warrantless arrest even if they were not a violation of 8
parole. Id. Staying out later than 9:00 p.m. does not 9
qualify. Bernacet’s arrest for his curfew violation was not 10
authorized by New York law. 11
B. Bernacet’s Arrest Was Constitutionally Permissible 12
But, not every arrest that is illegal under state law 13
violates the United States Constitution. See, e.g., United 14
States v. Wilson, 699 F.3d 235, 244 (2d Cir. 2012). In 15
Whren v. United States, 517 U.S. 806, 815 (1996), the 16
Supreme Court held that plainclothes police officers were 17
constitutionally authorized to seize a vehicle and its 18
occupants based on probable cause that the driver had 19
committed a relatively minor traffic infraction, 20
notwithstanding state regulations that permitted such 21
officers to enforce traffic laws “only in the case of a 22
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violation that is so grave as to pose an immediate threat to 1
the safety of others.” Id. (internal quotation marks 2
omitted, emphasis retained). The Court wrote, “[P]olice 3
enforcement practices, even if they could be practicably 4
assessed by a judge, vary from place to place and from time 5
to time. We cannot accept that the search and seizure 6
protections of the Fourth Amendment are so variable, and can 7
be made to turn on such trivialities.” Id. (internal 8
citation omitted). 9
Based in part on this reasoning, in Virginia v. Moore, 10
553 U.S. 164, 167 (2008), the Supreme Court upheld the 11
arrest of a driver for driving on a suspended driver’s 12
license, despite Virginia laws requiring the officers to 13
issue a summons instead of making an arrest when handling 14
such an infraction. The Court held that “an arrest based on 15
probable cause but prohibited by state law” is 16
constitutional. Id. at 166. Bernacet maintains that Moore 17
does not apply to parole violations because not all such 18
violations are defined as “crimes” or “offenses” under New 19
York law, and further that parole violations should be 20
treated differently, as a constitutional matter, from other 21
types of infractions. Neither argument is persuasive. 22
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1. Moore Applies to Arrests for Parole Violations 1
Bernacet asks us to hold that Moore applies to 2
“crimes,” “offenses,” and “violations,” but not to parole 3
violations, which he asserts, are not all “offenses” or 4
“crimes” under state law. He points to several cases that 5
use various terms to categorize the types of infractions 6
that support a constitutionally valid arrest. 6 Aside from 7
semantics, however, he does not identify a basis to 8
distinguish parole violations from other relatively minor 9
infractions that the Supreme Court has held can 10
constitutionally support an arrest. These include minor 11
misdemeanors and traffic offenses. For example, in Atwater 12
v. City of Lago Vista, 532 U.S. 318, 323 (2001), the Court 13
held that the Fourth Amendment does not forbid “a 14
warrantless arrest for a minor criminal offense, such as a 15
misdemeanor seatbelt violation punishable only by a fine.” 16
See also Moore, 553 U.S. at 167 (for driving on a suspended 17
license). 18
6 Bernacet directs us to, inter alia, Devenpeck v. Alford,
543 U.S. 146, 152 (2004) (permitting warrantless arrests “where
there is probable cause to believe that a criminal offense has
been or is being committed”) (emphasis added); Marcavage v. City
of New York, 689 F.3d 98, 109 (2d Cir. 2012)(same for an
“offense”) (emphasis added); United States v. Delossantos, 536
F.3d 155, 158 (2d Cir. 2008) (same for “a crime”) (emphasis
added).
18

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It is true that state substantive criminal law can 1
render an arrest unconstitutional by altering the legal 2
status of the underlying conduct. For example, in New York 3
police may constitutionally arrest a 21-year-old man based 4
on probable cause to believe he has had sexual intercourse 5
with a 16-year-old. See N.Y. Penal Law § 130.25. However, 6
police could not constitutionally arrest the same 21-year- 7
old man based on the same suspicions in Connecticut (where 8
the age of consent is 16. Conn. Gen. Stat. § 53a-71(a)(1)). 9
However, the Fourth Amendment does not incorporate 10
state procedural criminal law. “[W]hile States are free to 11
regulate [warrantless] arrests however they desire, state 12
restrictions do not alter the Fourth Amendment’s 13
protections.” Moore, 553 U.S. at 176. The legality of 14
warrantless arrests for parole violations “var[ies] from 15
place to place and from time to time,” id. at 172 (internal 16
quotation marks omitted). In fact, even New York permitted 17
such arrests before 1977. See Bratton, 8 N.Y.3d at 642-43. 18
“Fourth Amendment protections are not ‘so variable.’” 19
Moore, 553 U.S. at 172 (quoting Whren, 517 U.S. at 815). 20
Under New York law, parole violations are not 21
“offenses” or “crimes” for the purpose of determining 22
19

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whether officers are authorized to make a warrantless arrest 1
of a person violating his parole. But this limitation on 2
the power to arrest does not mean that violating parole does 3
not implicate New York substantive law. The legality of 4
Bernacet’s arrest at New York law therefore does not end, or 5
even inform, the constitutional inquiry. “Read together, 6
Moore and Whren stand for the proposition that the Fourth 7
Amendment does not generally incorporate local statutory or 8
regulatory restrictions on seizures and that the violation 9
of such restrictions will not generally affect the 10
constitutionality of a seizure supported by probable cause.” 11
Wilson, 699 F.3d at 243. Bernacet’s claim is of a 12
constitutional dimension; it cannot be measured with a state 13
law ruler. 14
2. Bernacet’s Parole Violation Provided a 15
Reasonable Ground for Arrest 16
17
Bernacet further contends that parole violations have a 18
special status that takes them outside the ambit of Moore. 19
We disagree. 20
First, even New York courts do not interpret Bratton as 21
speaking to the constitutional validity of a warrantless 22
arrest of a parole violator. For example, custody that is 23
illegal solely because it is premised on an improper 24
20

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warrantless arrest does not necessarily provide grounds for 1
habeas relief: that custody may violate state law, but it is 2
not unconstitutional. People ex rel. Rouse v. N.Y. State 3
Div. of Parole, 864 N.Y.S.2d 230, 235-36 (Sup. Ct. Bronx 4
Cnty. July 25, 2008). Furthermore, before Bratton, the New 5
York Appellate Division “focus[ed] . . . on the narrow 6
question of whether a violation of the statute requiring the 7
issuance of a parole violation warrant . . . require[d] 8
suppression . . . [and] conclude[d] that it does not.” 7
9
People v. Dyla, 142 A.D.2d 423, 439 (2d Dep’t 1988). 10
“[N]either the Federal nor the State Constitutions, 11
according to their language and history, require the 12
suppression of evidence gathered as a result of a ‘seizure’ 13
which is not ‘unreasonable’ and hence not unconstitutional, 14
solely on the grounds that the seizure may be considered 15
violative of some State statute, ordinance or regulation.” 8
16
7 Dyla is compatible with and survives Bratton; the
Appellate Division expressly “d[id] not decide[] whether a
violation of parole constitutes an ‘offense’ (see[] Penal Law
§ 10.00[1]) so that the warrantless arrest may be validated on
this basis.” People v. Dyla, 142 A.D.2d 423, 434 n.3 (2d Dep’t
1988).
8 Other state courts have similarly resolved the question at
issue in Dyla. In People v. Weathers, the Appellate Court of
Illinois upheld the warrantless arrest of a parolee for a curfew
violation, finding such arrests lawful in Illinois (and
presumptively constitutional); the court rejected her claim that
21

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Id. at 434 (citations omitted). 1
Second, New York has previously permitted warrantless 2
arrests for all parole violations, suggesting that such 3
arrests pose no inherent constitutional dilemma. Before 4
1978, “[i]n any case where a parole officer ha[d] [probable] 5
cause to believe that [a] parolee ha[d] violated the 6
conditions of his parole in an important respect, such 7
parole officer [could] retake such parolee and cause him to 8
be temporarily detained without a warrant.” Former N.Y. 9
Correct. L. §§ 216, 829(3) (both repealed 1978). 9 Bratton 10
acknowledges that “an exception to the warrant requirement 11
for those violations taking place in a parole officer’s 12
presence [might] make sense,” 8 N.Y.3d at 641, but notes 13
that there was “a considered legislative choice” to forbid 14
this authority. Id. at 642. The legislation has changed 15
since 1978, but the constitutional analysis has not. 16
the fruits of the search incident to her arrest should be
excluded. 40 Ill. App. 3d 211, 213-14 (1976). In Medlock v.
State, the Court of Appeals of Arkansas held that a warrantless
arrest of a parolee, though illegal, was supported by probable
cause and denied a motion to suppress. 79 Ark. App. 447, 461-62
(Div. IV 2002), aff’d by No. CR-03-839, 2004 WL 2191165 (Ark.
Sept. 30, 2004) (per curiam). Neither court found a Fourth
Amendment problem with arrests supported by probable cause that a
parole violation occurred. The constitutionality of warrantless
arrests for parole violations does not vary by state. Moore, 553
U.S. at 176.
9 A similar rule still exists for probationers. See CPL
N.Y. 410.50(4).
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Third, parole violations are not inherently less 1
serious than other minor offenses for which the Fourth 2
Amendment permits warrantless arrests. The Supreme Court 3
has held that warrantless arrests are lawful, for example, 4
in the case of a mother arrested in front of her children 5
for driving without a seatbelt (among other minor 6
infractions), Atwater, 532 U.S. at 323-24; for impersonating 7
a police officer when helping a motorist change a tire, 8
Devenpeck v. Alford, 543 U.S. 146, 148-49 (2004); for 9
driving with a suspended license, Moore, 553 U.S. at 166; 10
and for speeding, Arkansas v. Sullivan, 532 U.S. 769, 769 11
(2001) (per curiam). 12
While violating a curfew imposed as a condition of 13
parole is not the gravest of offenses, it is no less 14
reasonable a ground for detention. Indeed, although an 15
offense need not lawfully result in a custodial sentence for 16
it to serve as a basis for a constitutional arrest, 17
Sullivan, 532 U.S. at 771; Atwater, 532 U.S. at 348-50, 18
under New York law, a parole violation is a lawful ground 19
for a parolee’s arrest and incarceration, reflecting the 20
gravity that the State accords the offense. See N.Y. Exec. 21
L. § 259-i(3). Without defining the limits of Moore, we 22
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conclude that probable cause regarding a violation that, if 1
proven, could result in the loss of liberty provides 2
sufficient grounds for a constitutional warrantless arrest. 3
Bernacet’s arrest was constitutionally permissible; the 4
fruits of the search incident to his arrest were therefore 5
properly admitted. Sullivan, 532 U.S. at 771. 10
6
7
Conclusion 8
Bernacet’s checkpoint stop was legal and the NYPD had 9
probable cause to believe that he was violating his parole. 10
His arrest by the police staffing the checkpoint, while 11
contrary to New York law, was constitutionally reasonable. 12
The search incident to his arrest uncovered a handgun; 13
because the arrest was constitutionally proper, this weapon 14
was properly admitted at Bernacet’s trial. 15
10 We note, of course, that nothing restricts the authority
of the States to “accord protection against arrest beyond what
the Fourth Amendment requires.” Virginia v. Moore, 553 U.S. 164,
180 (2008) (Ginsburg, J., concurring). The Supreme Court has
expressed a preference for statutory, rather than constitutional,
limitations on the arrest power. “It is of course easier to
devise a minor-offense limitation by statute than to derive one
through the Constitution, simply because the statute can let the
arrest power turn on any sort of practical consideration without
having to subsume it under a broader principle.” Atwater v. City
of Lago Vista, 532 U.S. 318, 352 (2001). States are free to
develop their own remedies for illegal arrests as well; however,
suppression under the Fourth Amendment is available only for
constitutional violations.
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For the foregoing reasons, the opinion and order of the 1
district court is AFFIRMED. 2
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